Building for Bicycles: Safe Roads & Recreational Use Immunity

When many of us were growing up, if we thought of bicycles, we likely viewed them as a form of recreation—we went on bike rides with our family or tried to impress our friends by riding off of a ramp. As a transportation option, at best, you might ride over to a nearby friend’s house.

However, bicycles are now being increasingly recognized and appreciated as a legitimate and important transportation option. On top of its health benefits and negligible environmental costs, bike commuting can be particularly appealing in urban areas where commute distances are generally shorter, and where people wish to avoid congested traffic and expensive parking costs. As a result, many communities in Washington are seeing an increase in bike ridership. As with any change, municipalities need to be aware of how they are affected by this growth in bike commuting.

Duty to Provide Safe Roads

Although the first paved roads in America came about in the 19th century through the efforts of cycling groups, roads are often thought of as being meant for automobiles. However, in recent years there has been a pushback on this view, and many are demanding that their local governments recognize the growing use of roads by bicycles. This movement appears to be gaining traction in Washington, including in the courts.

In Keller v City of Spokane, the Washington Supreme Court held that municipalities owe “a duty to all persons . . . to build and maintain its roadways in a condition that is reasonably safe for ordinary travel.” This was not a radical idea at the time, but most probably understood “ordinary travel” on roadways to entail travel by automobile. However, just last year in O’Neill v. City of Port Orchard, a Washington appellate court clarified that cycling is a mode of “ordinary travel,” and that municipalities have a duty to maintain their roads for bicycle travel. To support this conclusion, the court pointed to RCW 47.06.100, which makes bicycles an integral part of Washington’s statewide multimodal transportation plan.

So what does this mean for municipalities? The O’Neill court did not lay out instructions for how a local government might ensure compliance with this duty. However, the court did state that a municipality is “not required to maintain its roadways in a perfect condition,” as “potholes and defects in roadways are matters widely known to the public.” At the very least, municipalities should consider whether general-purpose roads are safe for “ordinary travel” by bike and consider appropriate remedies where their roads are not.

Recreational Use Immunity

As bike use has increased, another shifting area that municipalities should be aware of is with recreational use immunity. Recreational use immunity stems from RCW 4.24.210, which provides, in relevant part, that:

public or private landowners . . . in lawful possession and control of any lands . . . who allow members of the public to use them for the purposes of outdoor recreation . . . without charging a fee of any kind . . . shall not be liable for unintentional injuries to such users.

This statute provides a layer of protection against negligence claims in order to encourage landowners to open up their land to the public for recreational use. However, it is limited in its scope, and can become tricky when applied to bicycle facilities due to the dual nature of bicycles.

What is the “dual nature” of bicycles? Bicycles are recognized throughout the state statutes as being both a mode of transportation, as well as a means of recreation. As mentioned before, RCW 47.06.100 designates bicycles as an integral part of Washington’s statewide multimodal transportation; however, RCW 4.24.210, the recreational use immunity statute, specifically lists “bicycling” as an example of outdoor recreation. So which is it: transportation or recreation? The short answer is: both. The long answer is: it depends.

Because bicycles have been recognized as being a form of transportation and not just recreation, local governments need to know that recreational use immunity is not a sure-fire defense in cases involving a cyclist injured while using bicycle infrastructure. In Camicia v. Howard S. Wright Const. Co., which was discussed at more length in a previous blog post, the Washington Supreme Court made it very clear that whether recreational use immunity applies in such a bike crash will depend very much on the nature of the bike infrastructure that was being used. The Camicia court and those in subsequent cases have looked at a variety of factors, such as the purposes for which the bike infrastructure was built, how it is able to be used, the source of funding used to construct it, and the ability of the city to close it to transportation uses.

One thing that the courts have said that they will not consider is whether the injured cyclist was riding for transportation or for recreation. This is meant to be consistent with the underlying purpose of the immunity, and it can serve as a protection if somebody is using recreational facilities for transportation. However, it can also go the other way. The determination that must be made is whether a particular bike facility is primarily created and used for recreational use or for transportation. This will then determine whether recreational use immunity is available as a defense.

Questions? Comments?

If you have questions about these or other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772. If you have comments about this blog post or other topics you would like us to write about, please email MRSC's Legal Blog Editor, Robert Sepler, at rsepler@mrsc.org.

MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

About Nick Quijas

A former MRSC legal intern, Nick is a law student at Seattle University School of Law and the Editor in Chief of Seattle Journal of Environmental Law. Nick is an avid bike commuter who has also worked at a Seattle firm that represents injured bicyclists.